October 5, 2005 marks the first annual First Nations' Women's Day in Canada. The Federation of Saskatchewan Indian Nations and the Assembly of First Nations adopted the resolution to acknowledge native Canadian women earlier this year.

The reasons for the resolution can be found in the minutes of the Annual General Assembly that took place in Yellowknife this past July, "First Nations women have contributed to the success, livelihood and survival of our communities; and it is important for people in our communities to support and recognize the need to acknowledge and honor First Nations women."

This is a worthy cause yet rather ironic since, whether it is a Canadian government sanctioned report or a United Nations' study, native Canadian women and children living on Indian reserves, are considered to be the most disadvantaged of all Canadian citizens. The lack of matrimonial property rights is one reason for the disparity.

Throughout Canada, provincial family law governs the division of assets and child custody upon dissolution of marriage. Yet because Canada's constitution stipulates the federal government has exclusive jurisdiction over native Canadians on reserves, the federal Indian Act is the law that ultimately governs native Canadians living on reserves.

Canadian courts have ruled that only the Indian Act can apply to property on reserves - regrettably, the Indian Act is mute on the subject of matrimonial property rights.

It is true, the land possession system of the Indian Act does not prohibit women from possessing property on reserves. However, the Department of Indian Affairs has indicated most homes are owned by native men. This is an important point since property rights on many reserves determine child custody and access rights. Therefore, native men have the upper hand when it comes to child custody and divorce settlements.

Women must ask their band council if they may stay in their family house and if they may retain custody of their children. It is even up to the chief and council to determine how much, if any, child support is given. As mentioned earlier, property rights on many reserves determine child custody and access rights, leading to many native women to not only become homeless, but lose custody and access to their children.

The Department of Indian Affairs website states, "According to anecdotal evidence, the issue of on-reserve matrimonial real property disproportionately affects aboriginal women and children, especially those experiencing family violence. On the breakdown of a marriage or a common-law relationship, many women living on a reserve who do not hold the Certificate of Possession [home-ownership], are forced to leave their family home, and in cases where there is no alternative on-reserve housing, their community."

It is a positive step forward that aboriginal women are being recognized and even honoured on October 5. However, if aboriginal organizations and politicians truly want to recognize aboriginal women, they should push for legislative changes to include matrimonial property rights on native reserves.

Since the Indian Act does not deal with matrimonial property rights, it would require a parliamentary amendment to change. True, the constitution gives the federal government exclusive jurisdiction over native reserves; this does not however mean that the federal government can not delegate some of its jurisdiction. A simple parliamentary amendment could allow for the appropriate provincial marriage laws to apply on reserves.

As more and more aboriginal women's organizations are established throughout Canada, Canadians will become more aware of the plight of native women and children who live on reserves. Given the speed at which politicians have dealt with native issues in the past, it will likely take a great deal of public pressure to force politicians to act for the benefit of aboriginal women and children. For the sake of native women and children, let's hope they move quickly on this issue.